Havas v State of New South Wales [2023] NSWDC 208

District Court New South Wales

Medium Neutral Citation: Havas v State of New South Wales [2023] NSWDC 208 Hearing dates: 8 June 2023 Date of orders: 8 June 2023 Decision date: 08 June 2023 Jurisdiction: Civil Before: Newlinds DCJ Decision: Application to set aside Subpoena and Notice to Admit Facts dismissed Cases Cited: Secretary of the Department of Planning Industry Environment v Blacktown City Council [2021] NSWCA 145 Category: Procedural rulings Parties: Eidan Havas (plaintiff/respondent) State of New South Wales (defendant/applicant) Representation: Counsel: J Sheller SC (plaintiff/respondent) E Jones (defendant/applicant)

Solicitors: Uther Webster & Evans (plaintiff/respondent) Wooton Kearney (defendant/applicant) File Number(s): 2022/202017 Publication restriction: None

JUDGMENT – ex tempore 1. HIS HONOUR: This is an application by notice of motion filed by the defendant to set aside a series of subpoenas issued by the plaintiff to various journalists and telecommunication providers. There is also a related application by the defendant to set aside a notice to admit issued by the plaintiff. 2. The issue for determination in relation to both applications is essentially the same. 3. The case is a claim by the plaintiff who is a solicitor. His complaint is that, amongst other things, he was subject to a malicious prosecution for which the State is vicariously liable. He says he was arrested in circumstances where there was no proper basis for him to be arrested and that his arrest was orchestrated so as to take place in the public eye in the presence of a number of members of the press. 4. Whilst it is not pleaded expressly at the moment, it is quite clear the way the plaintiff will put his case in relation to the malice of the prosecution, which for present purposes is Detective Thom, will be to prove that Detective Thom either "tipped-off" the press as to the impending arrest or was in some way involved or had knowledge of the tip‑off to the press. 5. That issue seems to have panned out as follows: firstly, it is alleged by the plaintiff and admitted by the State that Detective Thom is the prosecutor for the purpose of a malicious prosecution claim; secondly, it is alleged by the plaintiff but denied by the State that Detective Thom was involved in "tipping‑off" the press on the relevant day; thirdly, it is accepted by the State that an officer or officers of the New South Wales Police Force did "tip‑off" the press in relation to the time and location of the arrest. 6. The submission made by Ms Jones on behalf of the State is as simple as it is attractive. Her point is that it is Detective Thom's state of mind which is relevant. Whether or not Detective Thom "tipped‑off" the press is a relevant fact which the plaintiff would be entitled to use processes of discovery and subpoena to explore, but if, as the State suggests, Detective Thom did not "tip‑off" the press, then it is no business of the plaintiff to find out which other officer of the New South Wales Police Force did the "tipping-off" because, so the submission goes, that would have no relevance to Detective Thom's state of mind. 7. That is an attractive submission but I think it glosses over a number of important matters. The test for setting aside a subpoena is that I have to be satisfied that there is a reasonable basis beyond speculation that the documents sought to be produced are likely to assist the party issuing the subpoenas case. That test to justify a subpoena has been variously described over recent decades. The most recent exposition by the Court of Appeal of the test was in Secretary of the Department of Planning Industry Environment v Blacktown City Council [2021] NSWCA 145 where it was held at [65] what can be described as "apparent relevance" viz the document sought to be produced by way of subpoena will "materially assist an identified issue or there is a reasonable basis beyond speculation that is likely the document subpoenaed will so assist." I am satisfied as to that low threshold. 8. My reasons are as follows: firstly, as Mr Sheller SC, who appears for the plaintiff, says, quite rightly, the plaintiff does not have to accept the defendant's assertion that Detective Thom did not make the tip‑off or was not involved in it. They are entitled to test that proposition. Secondly, it is to my mind conceivable beyond the level of speculation that what other officers did or did not do in relation to their dealings with the press may cast light on Detective Thom's involvement. I will not put it any higher than that because to do so would involve me simply setting out some examples which I understand Ms Jones says is me doing no more than speculation, and I accept that we are close to the line, but I am satisfied that the documents sought have apparent relevance to the issue of Detective Thom's state of mind or to put it another way that the documents should be produced because it is "on the cards" that information contained within them may be of some relevance to that issue. 9. For the same reasons, I decline the application and set aside the Notice to Produce. 10. I want to make it clear that, on my understanding of the law, there is actually nothing wrong (in the sense of being the basis of a cause of action) with police "tipping‑off" the press. Perhaps it is not considered by some to be a desirable practice, but that is not my understanding of the basis of the cause of action upon which the plaintiff sues. It will simply be a factor or piece of evidence which might throw light on the question of Detective Thom's state of mind which of course is the relevant mind for considering the question of malice. 11. For those reasons, I dismiss the amended notice of motion which was filed in Court today. Ms Jones, is there any reason why I wouldn't do that with costs? JONES: I don't say anything against that. 1. The amended motion will be dismissed with costs.